Simply becuase police report was not given by good samritan - his evidence can not be brushed aside when his evidence goes unchallenged.
It is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital. The statement of AW3, therefore, acquires significance as, according to him, he brought the injured in his car to Page | 8 the hospital. Ritesh Pandey (AW3) acted as a good samaritan and a responsible citizen, and the High Court ought not to have disbelieved his testimony based merely on a conjecture. It is necessary to reiterate the independence and benevolence of AW3. Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.
The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW3 to lodge a report once again to the police at a later stage either.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 40104011 of 2020
[Arising out of Special Leave Petition (C) Nos. 3201132012 of
2018]
Anita Sharma & Ors. ..... Appellant(s)
VERSUS
The New India Assurance Co. Ltd. & Anr. ..... Respondent(s)
JUDGMENT
Surya Kant, J:
Leave Granted.
2. These two appeals, which have been heard through video
conferencing, are directed against the judgment dated 23.07.2018
passed by the High Court of Judicature for Rajasthan, Bench at
Jaipur whereby the first appeal preferred by the New India Assurance
Co. Ltd. (Respondent No. 1) against the Motor Accident Claims
Tribunal’s (hereinafter, “Tribunal”) award dated 01.09.2012 was
allowed and the Claim Petition was rejected, whereas the appeal filed
by the appellantclaimants for enhancement of compensation was
consequently dismissed.
Page | 1
FACTS:
3. Sandeep Sharma (deceased), was a resident of District Sikar in
Rajasthan. He was travelling in a car bearing registration no. UP 65
AA 7100 from Ghazipur to Varanasi (Uttar Pradesh) on the night of
25.03.2009 along with his friend Sanjeev Kapoor (Respondent No. 2)
and two other occupants. Sanjeev Kapoor, who was also its owner,
was driving the car when at about 10:20PM near village Atroli, a truck
coming from the opposite side struck the car as a result of which all
the occupants suffered injuries. Sandeep along with the other injuredoccupants was rushed to the District Hospital in Ghazipur at around
11:55PM, but was subsequently referred to the Institute of Medical
Sciences and S.S. Hospital, BHU, Varanasi on 26.03.2009 considering
the severity and multiplicity of his injuries. Although he was
discharged on 16.04.2009 and brought back to Rajasthan, it appears
that Sandeep kept experiencing one after another medical
complications, and remained hospitalized at the Jain Hospital in
Jaipur and later the Joshi Nursing Home at Sikar. His injuries
eventually got the better of him and Sandeep Sharma passed away on
10.12.2009.
4. At the time of death, the deceased was aged 34 years and was an
income tax assessee with an Employees Provident Fund (EPF)
account. He was employed in Mumbai at Kelvin Ess Vee Textiles as a
Page | 2
Sales Officer on regular basis. He left behind a widow, two minor
children and a mother; all of whom were dependent on him.
5. Sandeep’s dependents filed a claim petition for Rs 60,94,000
(Rupees sixty lakhs and ninetyfour thousand) on 26.08.2010 alleging,
inter alia, that he died as a result of the injuries suffered in the abovementioned accident of 25.03.2009, which occurred due to the rash
and negligent driving of Sanjeev Kapoor who was the ownercumdriver of the car in which Sandeep was travelling. Sanjeev Kapoor
(hereinafter, “ownercumdriver”) and the insurer of the car New
India Assurance Co. Ltd. (hereinafter, “insurance company”) were
impleaded as party respondents.
6. The ownercumdriver in his written statement admitted that the
deceased had suffered multiple injuries in the accident while travelling
in the car with him but he disowned responsibility for the accident by
asserting that it was the truck which was coming from the opposite
side at a very fast speed, and was being driven in a rash and negligent
manner. Since all the four occupants of the car had been injured, they
were unable to note the registration details of the truck which made a
hasty getaway towards Ghazipur.
7. The insurance company in its separate written statement took
the preliminary objection that as per the police investigation and first
Page | 3
information report, the accident was caused by an unknown truck
which hit the car No. UP65AA7100 and, therefore, the claim petition
filed against the owner of the car or its insurer was contrary to law.
The factual averments made in the Claim Petition were denied for
want of knowledge.
8. In reaching its verdict, the Tribunal relied upon the statement of
the eyewitness Ritesh Pandey (AW3), according to whom Sanjeev
Kapoor was driving the car at a very fast speed when it overtook a
vehicle and collided headon against the oncoming truck. The
Tribunal, thus, assigned liability for the accident upon the
respondents and partly allowed the Claim Petition with a
compensation of Rs. 16,08,000 (Rupees sixteen lakhs and eight
thousand).
9. Both the insurance company and the appellantclaimants filed
their respective appeals before the High Court. Through judgment
dated 23.07.2018, the High Court set aside the Tribunal’s award and
dismissed the claim petition for the reasons that first, Ritesh Pandey
(AW3) had failed to report the accident to the jurisdictional police. He
was apparently introduced by the claimants only to seek
compensation. Second, the FIR had been lodged by the ownercumdriver, Sanjeev Kapoor, who would not have done so had he been at
fault or driving rashly. Third, the assertion of Ritesh Pandey (AW3)
Page | 4
that he took the injured to hospital was not proved from the record of
the Government Hospital, Ghazipur which revealed that Sandeep
Sharma was brought to the hospital by SubInspector Sah
Mohammed.
CONTENTIONS:
10. We have heard learned counsel for parties and have perused the
Original Record of the Tribunal and the High Court. The two questions
which fall for determination are whether the accident was caused due
to rash and negligent driving of the car driver—Sanjeev Kapoor and
whether Ritesh Pandey (AW3) is a reliable witness or not?
ANALYSIS:
11. At the outset, it may be mentioned that some material facts
which have a direct bearing on the fate of this case, have escaped
notice of the High Court. The FIR was not registered by Sanjeev
Kapoor (ownercumdriver of the car) as assumed by the High Court.
Instead, as a matter of fact, the FIR No. 120/09 (Exh 1) was registered
on the basis of information furnished by one, Pradeep Kumar
Aggarwal, son of Bal Krishan Das Aggarwal – a resident of District
Varanasi. The contents of this report reveal that Sanjeev Kapoor was
travelling in the Wagon R Car No. UP65AA7100 along with three
other occupants. While returning from Ghazipur to Varanasi, a truck
Page | 5
which was being driven rashly and at a fast speed, struck against the
car and then sped away towards Ghazipur. The number of the truck
could not be noticed as it was dark. The car was badly damaged.
Various people gathered at the spot who took out the injured from the
car. It is specifically mentioned that all the injured were taken to the
hospital for treatment where Rahul Singh @ Chotu Singh passedaway
whereas Sandeep Sharma was referred to BHU Varanasi for treatment.
The FIR was lodged on 27.03.2009 and a slightly illegible part thereof
indicates that Sanjeev Kapoor and the informant were known to each
other. The informant himself had not witnessed the accident and
apparently lodged the FIR based on hearsay information.
12. Importantly, the ownercumdriver though denied responsibility
of the accident through his written statement but chose not to enter
the witness box in his defence. The insurance company, on the other
hand, relied upon the contents of the FIR and the ‘Investigation
Report’ to aver that the accident took place due to rash and negligent
driving of the truck driver alone. But we find that the ‘investigation
report’ (Exh. 2) dated 05.05.2009 merely recites that the registration
number of the offending truck could not be ascertained despite best
efforts.
13. At this juncture, we may refer to the statement of Ritesh Pandey
(AW3). This witness is a resident of Ghazipur in Uttar Pradesh. He is
Page | 6
neither related to the deceased nor was he remotely connected to the
family of the deceased. He hailed from a different State and lived in a
faraway place. There is nothing to suggest that the witness had any
business dealings with the deceased or his family. He has deposed
that he was travelling in his own car on the date of the incident on the
same route when the ownercumdriver of the Wagon R car carelessly
overtook him at a very high speed. He has further deposed that a
truck coming from the opposite side collided with the car. Various
persons gathered at the place of accident and four persons trapped
inside the car were taken out, three of whom were unconscious and
the fourth was its driver Sanjeev Kapoor. The witness has further
deposed that he took all the four injured persons to the District
Hospital, Ghazipur where some of them were referred to Institute of
Medical Sciences and S.S. Hospital, BHU, Varanasi.
14. Most importantly, the only question asked to this witness in
crossexamination is whether the truck could be spotted and whether
he was able to note the registration number of the truck. The witness
has candidly admitted that he could not see the registration number of
the truck. No other question was asked to this witness in the crossexamination. While the Tribunal believed Ritesh Pandey (AW3) and
accepted the claim petition in part, the High Court, for the reasons
which are already briefly noticed, has disbelieved him on the premise
Page | 7
that the deceased was brought to the hospital by SI Sah Mohammed
and not by Ritesh Pandey (AW3). The entire case, thus, effectively
hinges upon the trustworthiness of the statement of this witness.
FINDINGS:
15. It is not in dispute that the accident took place near Ghazipur
and that numerous people had assembled at the spot. Some bystander
would obviously have informed the police also. While the contents of
the FIR as well as the statement of Ritesh Pandey (AW3) leave no
room to doubt that the injured were taken to the Hospital by private
persons (and not by the police), it is quite natural that the police
would also have reached the Government hospital at Ghazipur and,
therefore, it was mentioned that Sandeep Sharma was broughtin by
SI Sah Mohammed.
16. It is commonplace for most people to be hesitant about being
involved in legal proceedings and they therefore do not volunteer to
become witnesses. Hence, it is highly likely that the name of Ritesh
Pandey or other persons who accompanied the injured to the hospital
did not find mention in the medical record. There is nothing on record
to suggest that the police reached the site of the accident or carried
the injured to the hospital. The statement of AW3, therefore, acquires
significance as, according to him, he brought the injured in his car to
Page | 8
the hospital. Ritesh Pandey (AW3) acted as a good samaritan and a
responsible citizen, and the High Court ought not to have disbelieved
his testimony based merely on a conjecture. It is necessary to reiterate
the independence and benevolence of AW3. Without any personal
interest or motive, he assisted both the deceased by taking him to the
hospital and later his family by expending time and effort to depose
before the Tribunal.
17. It is quite natural that such a person who had accompanied the
injured to the hospital for immediate medical aid, could not have
simultaneously gone to the police station to lodge the FIR. The High
Court ought not to have drawn any adverse inference against the
witness for his failure to report the matter to Police. Further, as the
police had themselves reached the hospital upon having received
information about the accident, there was perhaps no occasion for
AW3 to lodge a report once again to the police at a later stage either.
18. Unfortunately, the approach of the High Court was not sensitive
enough to appreciate the turn of events at the spot, or the appellantclaimants’ hardship in tracing witnesses and collecting information for
an accident which took place many hundreds of kilometers away in an
altogether different State. Close to the facts of the case in hand, this
Court in Parmeshwari v. Amir Chand1
, viewed that:
1
(2011) 11 SCC 635
Page | 9
“12. The other ground on which the High Court dismissed the case
was by way of disbelieving the testimony of Umed Singh, PW 1.
Such disbelief of the High Court is totally conjectural. Umed
Singh is not related to the appellant but as a good citizen,
Umed Singh extended his help to the appellant by helping her
to reach the doctor's chamber in order to ensure that an
injured woman gets medical treatment. The evidence of Umed
Singh cannot be disbelieved just because he did not file a
complaint himself. We are constrained to repeat our
observation that the total approach of the High Court,
unfortunately, was not sensitised enough to appreciate the
plight of the victim.
xxx
15. In a situation of this nature, the Tribunal has rightly taken a
holistic view of the matter. It was necessary to be borne in mind
that strict proof of an accident caused by a particular bus in
a particular manner may not be possible to be done by the
claimants. The claimants were merely to establish their case on the
touchstone of preponderance of probability. The standard of proof
beyond reasonable doubt could not have been applied.”
(emphasis supplied)
19. The failure of the respondents to cross examine the solitary eyewitness or confront him with their version, despite adequate
opportunity, must lead to an inference of tacit admission on their part.
They did not even suggest the witness that he was siding with the
claimants. The High Court has failed to appreciate the legal effect of
this absence of crossexamination of a crucial witness.
Page | 10
20. The importance of crossexamination has been elucidated on
several occasions by this Court, including by a Constitution Bench in
Kartar Singh v. State of Punjab2
, which laid down as follows:
“278. Section 137 of the Evidence Act defines what crossexamination means and Sections 139 and 145 speak of the mode of
crossexamination with reference to the documents as well as oral
evidence. It is the jurisprudence of law that crossexamination
is an acidtest of the truthfulness of the statement made by a
witness on oath in examinationinchief, the objects of which
are:
(1) to destroy or weaken the evidentiary value of the witness of his
adversary;
(2) to elicit facts in favour of the crossexamining lawyer's client from
the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the
credit of the said witness;
and the questions to be addressed in the course of crossexamination are to test his veracity; to discover who he is
and what is his position in life; and to shake his credit by
injuring his character.
279. The identity of the witness is necessary in the normal trial of
cases to achieve the above objects and the right of confrontation is
one of the fundamental guarantees so that he could guard himself
from being victimised by any false and invented evidence that may
be tendered by the adversary party.”
(emphasis supplied)
21. Relying upon Kartar Singh (supra), in a MACT case this Court
2
(1994) 3 SCC 569
Page | 11
in Sunita v. Rajasthan State Road Transport Corporation3
considered the effect of nonexamination of the pillion rider as a
witness in a claim petition filed by the deceased of the motorcyclist
and held as follows:
“30. Clearly, the evidence given by Bhagchand withstood the
respondents' scrutiny and the respondents were unable to shake his
evidence. In turn, the High Court has failed to take note of the
absence of cross examination of this witness by the respondents,
leave alone the Tribunal's finding on the same, and instead,
deliberated on the reliability of Bhagchand's (A.D.2) evidence from
the viewpoint of him not being named in the list of eye witnesses in
the criminal proceedings, without even mentioning as to why such
absence from the list is fatal to the case of the appellants. This
approach of the High Court is mystifying, especially in light of this
Court's observation [as set out in Parmeshwari (supra) and
reiterated in Mangla Ram (supra)] that the strict principles of proof in
a criminal case will not be applicable in a claim for compensation
under the Act and further, that the standard to be followed in such
claims is one of preponderance of probability rather than one of
proof beyond reasonable doubt. There is nothing in the Act to
preclude citing of a witness in motor accident claim who has not
been named in the list of witnesses in the criminal case. What is
essential is that the opposite party should get a fair
opportunity to cross examine the concerned witness. Once
that is done, it will not be open to them to complain about
any prejudice caused to them. If there was any doubt to be
cast on the veracity of the witness, the same should have
come out in cross examination, for which opportunity was
3
(2019) SCC Online SC 195.
Page | 12
granted to the respondents by the Tribunal.
xxx
32. The High Court has not held that the respondents were
successful in challenging the witnesses' version of events, despite
being given the opportunity to do so. The High Court accepts that the
said witness (A.D.2) was cross examined by the respondents but
nevertheless reaches a conclusion different from that of the Tribunal,
by selectively overlooking the deficiencies in the respondent's case,
without any proper reasoning.”
(emphasis supplied)
22. Equally, we are concerned over the failure of the High Court to
be cognizant of the fact that strict principles of evidence and
standards of proof like in a criminal trial are inapplicable in MACT
claim cases. The standard of proof in such like matters is one of
preponderance of probabilities, rather than beyond reasonable doubt.
One needs to be mindful that the approach and role of Courts while
examining evidence in accident claim cases ought not to be to find
fault with nonexamination of some best eyewitnesses, as may
happen in a criminal trial; but, instead should be only to analyze the
material placed on record by the parties to ascertain whether the
claimant’s version is more likely than not true. A somewhat similar
situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz4
wherein this Court reiterated that:
“7. It would hardly need a mention that the plea of negligence on the
part of the first respondent who was driving the pickup van as set
4
(2013) 10 SCC 646.
Page | 13
up by the claimants was required to be decided by the learned
Tribunal on the touchstone of preponderance of probabilities
and certainly not on the basis of proof beyond reasonable
doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5
SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )”
(emphasis supplied)
23. The observation of the High Court that the author of the FIR (as
per its judgment, the ownercumdriver) had not been examined as a
witness, and hence adverse inference ought to be drawn against the
appellantclaimants, is wholly misconceived and misdirected. Not only
is the ownercumdriver not the author of the FIR, but instead he is
one of the contesting respondents in the Claim Petition who, along
with insurance company, is an interested party with a pecuniary stake
in the result of the case. If the ownercumdriver of the car were
setting up a defence plea that the accident was a result of not his but
the truck driver’s carelessness or rashness, then the onus was on him
to step into the witness box and explain as to how the accident had
taken place. The fact that Sanjeev Kapoor chose not to depose in
support of what he has pleaded in his written statement, further
suggests that he was himself at fault. The High Court, therefore, ought
not to have shifted the burden of proof.
24. Further, little reliance can be placed on the contents of the FIR
(Exh.1) , and it is liable to be discarded for more than one reasons.
Page | 14
First, the author of the FIR, that is, Praveen Kumar Aggarwal does not
claim to have witnessed the accident himself. His version is hearsay
and cannot be relied upon. Second, it appears from the illegible part of
the FIR that the informant had some closeness with the ownercumdriver of the car and there is thus a strong possibility that his version
was influenced or at the behest of Sanjeev Kapoor. Third, the FIR was
lodged two days after the accident, on 27.03.2009. The FIR recites
that some of the injured including Sandeep Sharma were referred to
BHU, Varanasi for treatment, even though as per the medical report
this took place only on 26.03.2009, the day after the accident.
Therefore the belated FIR appears to be an afterthought attempt to
absolve Sanjeev Kapoor from his criminal or civil liabilities. Contrarily,
the statement of AW3 does not suffer from any evil of suspicion and is
worthy of reliance. The Tribunal rightly relied upon his statement and
decided issue No. 1 in favour of the claimants. The reasoning given by
the High Court to disbelieve Ritesh Pandey AW3, on the other hand,
cannot sustain and is liable to be overturned. We hold accordingly.
25. Adverting to the claimants’ appeal for enhancement of
compensation, we are of the view that no effective argument could be
raised on their behalf as to how the compensation assessed by the
Tribunal was inadequate, except that in view of the authoritative
pronouncement of this Court in National Insurance Co Ltd v.
Page | 15
Pranay Sethi5
, the claimants are entitled to an increase of 40%
towards annual dependency on account of ‘future prospects’ given the
undisputed age of the deceased. Their appeal to that extent deserves
to be allowed.
CONCLUSION:
26. In light of the above discussion, the judgment under appeal of
the High Court is set aside and the appellants are held entitled to
compensation as awarded by the Tribunal, besides 40% addition in
the annual income of the deceased towards ‘future prospects’. The
Motor Accident Claims Tribunal, Sikar (Rajasthan) is directed to recalculate the compensation amount accordingly. The appellants are
held entitled to interest @ 8.5%, as per the Tribunal’s award, on the
entire amount of compensation. The Tribunal shall recalculate the
compensation within one month and the insurance company shall
deposit the same within one month thereafter. No order as to costs.
…………………………… J.
(SURYA KANT)
…………………………...J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 08.12.2020
5
(2017) 16 SCC 680.
Page | 16
